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Kiss The Fourth Amendment Goodbye!
by Jon Christian Ryter

March 29, 2004

   It's finally happened. Thanks to recent judicial decisions by the traditionally conservative 5th Circuit Court and the US Supreme Court, Americans can pretty much kiss the 4th Amendment goodbye. On the heels of a US Supreme Court decision that now allows police to fully arrest and handcuff American citizens for misdemeanor violations of traffic law that are generally punishable with a ticket and a fine in traffic court, the usually conservative US 5th Circuit Court of Appeals in New Orleans ruled on Friday, March 26, 2004 that police officers can briefly search homes and commercial buildings and use any evidence found in those warrantless searches in the trials of those charged with violating the law--even if police had no suspicion those being detained had violated laws for which they were consequently charged based on the evidence discovered in the warrantless search.

   The 5th Circuit's decision sets a groundbreaking legal precedent that frightens legal experts who claim the new ruling establishes a privilege that will quickly be abused by police in every jurisdiction in the nation even though the 5th Circuit's decision actually only affects Louisiana, Texas and Mississippi. Louisiana law enforcement officers claim it was needed to provide safety to officers...

   Acting on a Baton Rouge case, the 5th Circuit ruled that police do not need an arrest or search warrant to conduct a swift sweep of private property to ensure their own safety. Further, the court ruled, any evidence discovered during the sweep is admissible in court as long as the search is a cursory inspection of the dwelling or other building rather than a "deep" search--and providing the police entered the building for legitimate law enforcement purposes...and they had reason to believe that entering that building or dwelling might be dangerous.

   What law enforcement situation today is not dangerous? Even minor domestic squabbles can become instantly dangerous.

   In October, 2000, a Denham Springs, Louisiana man, Kelly Donald Gould was arrested on federal gun charges after he allegedly threatened to kill two state judges. When sheriff's deputies--without either a search warrant or an arrest warrant--arrived at Gould's home to "question" the man about the alleged threats, they were admitted by another person who was either living in, or visiting, the mobile home. According to the deputies, they were told that Gould was asleep in a back bedroom when, in fact, Gould had slipped out of the dwelling and was hiding in a wooded area behind the mobile home. The sheriff's deputies claim that because of Gould's criminal background and the threats he supposedly leveled against public officials, they believed they were in danger and needed to "secure" the premise by either taking Gould into custody, or by making certain he was not in the dwelling.

   On the pretext of looking under beds and in closets for Gould, deputies found three rifles. When Gould was found hiding in the woods, deputies convinced him to sign a permission for search authorization after-the-fact--and then seized his guns and charged him with three counts of unlawful possession of a firearm. At trial, US District Court Judge James Brady rightly ruled that the guns could not be used as evidence against Gould because they were found illegally.

   The 4th Amendment forbids vigilante searches by police officers--regardless of how justified they believe they are and how guilty they know the accused is. Nor does the Constitution provide federal judges with the authority to "waive" those Constitutional protections because police officers feel endangered when they enter the homes or business of suspects.

   For the benefit of those who believe the federal magistracy has that authority, they should read ArticleIII, Section 1 of the Constitution. Neither the Supreme Court nor the inferior federal courts were granted the right of judicial review either over State law-nor over the Constitution itself. Furthermore, Article II, Section 4 spells out the remedy when overzealous judges assume for themselves the power of judicial review not granted them by the Constitution.

   The 4th Amendment guarantees citizens of the United States "...the right...to be secure in their person, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

   The US District Court was constitutionally correct in the matter of Kelly Donald Gould. The 5th Circuit Court of Appeals was wrong. Interestingly, a three-judge panel for the 5th Circuit upheld Brady's decision. But at least one of those judges suggested to the State of Louisiana that they request a hearing before the full court to "reconsider the legal precedent" upon which the case was based.

   In an 11-4 ruling, the 5th Circuit--based, they claimed, on similar standards that had been adopted by four other federal circuit courts of appeals--overturned the three judge panel and ruled that evidence gleaned in warrantless protective sweeps is admissible in court. Again, it is frightening when the federal magistracy starts making legal decisions based on "legal unity" rather than on the clarity of the rule of law as defined by the Constitution of the United States.

   In their dissenting opinion, Judges Harold DeMoss, Jr. and Carl E. Stewart wrote: "[We] have no doubt that the deputy sheriffs believed they were acting reasonably and with good intentions, but the old adage warns us that the road to Hell is paved with good intentions." US Attorney David Dugas, who prosecuted the case for the government argued that the Gould case illustrated the difficult situations law enforcement officers face when "...they're expected to make split-second decisions in potentially dangerous situations involving constitutional issues that the courts and legal scholars can spend years debating."
Dugas' solution appears to be to eliminate the constitutional safeguards so that the police won't have legal issues to stumble over when they perform unconstitutional searches

==============

In the US Supreme Court case, settled on Tuesday, March 23, the justices decided in a 5-4 decision (with liberal David Souter joining the conservatives) that warrantless arrests for misdemeanors that are
punishable only by fines, in which the accused is handcuffed and taken into custody, do not violate the Constitution. What makes Atwater v Lago Vista noteworthy is that it sets the stage for how local police in every jurisdiction in America will now interact with the public.

   In 1997 Gail Atwater was pulled over by Lago Vista, Texas police officer Bart Turek. Atwater violated a big brother law--driving her car without wearing seat belts. (In fact, as it was later established in court, this was the second time Turek had stopped Atwater for not being "buckled up.")
   Only, this time, Atwater had her two daughters in the car with her. The daughters were ages 4 and 6 Neither of them were buckled up. In addition to this "serious infraction" of a Texas law designed to protect us from ourselves, Atwater committed two other infractions that angered Barney Fife...er...Officer Bart Simpson...er, Turek. She did not have her driver's license on her--nor did she have proof of insurance in her vehicle. (At issue before the US Supreme Court last week was the case of Larry Dudley
Hiibel who was arrested, handcuffed and taken to jail by Humbolt County, Nevada Deputy Sheriff Lee Dove on May 22, 2000 because Hiibel--who was doing nothing more than smoking a cigarette as he leaned against his daughter's pickup truck near his home in Winnemucca--refused to produce identification to prove to Dove who he was. Since he was doing nothing wrong, Hiibel believed the deputy had no legal right to ask for his identification.)

  Lago Vista police officer Officer Turek decided to make an example of Gail Atwater. Turek handcuffed her in front of her frightened, crying children. Atwater was taken to jail and booked like a common criminal. She was later released on bond. Atwater pleaded guilty to the charge of driving without a seat restraint. The other two charges, driving without a license and driving without insurance, were dropped. Those charges were added solely to justify Turek's poor judgment as a law enforcement officer.

   Atwater and her husband sued the city of Lago Vista and Turek, claiming their 4th Amendment rights were violated by the officer. The US District Court found for the city. The 5th Circuit affirmed the lower court's ruling. The majority ruled that police can fully arrest anyone--and place them in restraints--for minor violations of the law that normally generate only a ticket and a fine. Justice David Souter, who generally rules with the liberals, saw nothing wrong with arresting, handcuffing, and taking into custody, a mother who was taking her children to school because she wasn't buckled up--and because she forgot her driver's license.

   Sandra Day O'Connor, who generally sides with the conservative, rule of law justices, sided with Ruth Bader Ginsberg, John Paul Stevens, and Stephen Breyer, arguing that the "...recent debate over racial profiling...demonstrates all too clear [that] a minor infraction may often serve as an excuse to stop and harass an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest."

  O'Connor continued by saying it is not up to the justices to ascertain the officer's motives to determine the "reasonableness" of the traffic stop. "But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers' post-stop actions, which are properly within our reach, comport with the 4th Amendment's guarantee of reasonableness."

   Unfortunately for the American people, it appears that "reasonableness" is now defined by the USA Patriot Act.

   "We are fast approaching the stage of the ultimate inversion: the stage
where the government is free to do anything it pleases, while the citizens
may act only by permission; which is the stage of the darkest periods of
human history, the stage of rule by brute force." [Ayn Rand, The Nature of
Government]